Articles Posted in Murder

A New Zealand couple’s vacation in Southern California ended in tragedy. The couple, a prominent businessman in New Zealand and his wife were visiting Newport Beach’s iconic outdoor shopping mall Fashion Island. There they were accosted by two men brandishing guns. Perhaps the two men didn’t intend their robbery to end in murder, but it did. One of the men put a gun to the businessman’s head while another dragged the businessman’s wife to into the street as he tried to pull away the shopping bags she was carrying from her. Another accomplice, the getaway driver pulled his car toward the man trying to grab the shopping bags. In the process, the getaway driver ran over the woman and dragged her body across the parking lot resulting in the woman’s death.

While not all murders are capital murder cases (that is, a murder charge eligible for the death penalty), the circumstance here makes the crime a potential capital murder case and indeed, all three men have been charged by the Orange County District Attorney with capital murder.

You may wonder how all three could be charged with capital murder when there did not appear to be an intent to murder the woman and her death was caused only by the driver.  The answer is special circumstances. The men are all charged with murder in commission of a felony (robbery) which is a special circumstances charge. This charge does not require the intent to commit murder but only that the underlying felony was intended. Furthermore, the special circumstances murder charge applies to anyone who aided or abetted the underlying crime that resulted in the murder.

The Felony Murder Rule is a rule that attributes liability to an accomplice for a murder even if the accomplice was not the actual killer. In California, an accomplice (also referred to as an aider and abettor) to a crime can be charged, convicted, and sentenced for first- or second- degree murder just by the simple fact that he or she participated in a crime where a murder occurred. In fact, for some serious crimes such as burglary, robbery, or rape, an accomplice to the crime could even be sentenced to death even though he or she did not commit the actual killing.

For example, Jack and Jill scheme to steal a pail of very high value liquid from a woman who lives up on a hill. Jack is armed; he is the one who will take the pail by force or fear (robbery). Jill’s role is to coax the woman out of her house so the robbery can be accomplished. Jack and Jill do not plan to murder anyone; they only want the pail and its contents. Jill lures the woman outside where Jack is waiting. Jack springs from behind some bushes, points the gun at the woman, and demands the pail. As this is happening, Jill spots a neighbor with a shotgun who is witnessing this event. Jill warns Jack and in a sudden panic, he shoots and kills the neighbor. Jack and Jill then run down the hill without the pail of liquid. Much to their surprise, the cops are waiting for them at the bottom of the hill because the neighbor’s wife had called 911. They are both arrested and charged with attempted robbery and murder.

Jill never expected Jack to kill anyone; in fact, he had told her that the gun was not loaded. None of that matters for purposes of the felony murder rule. It is enough that Jill participated in a crime that had the inherent risk of death. It doesn’t matter if the death was intentional, negligent or even accidental.

The opioid epidemic in this country couldn’t have happened without the doctors. Now, I am not saying all doctors are bad, I am just stating a fact. I am not imputing motivation, but I suspect money had something to do with the fact that some doctors found a good business model in pain relief. And, I am sure some doctors thought they were doing a good thing to prescribe opioids to their patients who were suffering from tremendous pain — after all, the pharmaceutical companies marketed the opioids as wonder drugs with negligible risk of addiction.

But about ten years ago, the consequences of all these legal opioid prescriptions became tragically evident. This country is now struggling with an opioid crisis and overdose deaths are rising at rapid rates every year.

What about those doctors who prescribe opioids at to patients that overdose and die? Is the doctor the proximate cause of a person’s death? While there have been numerous instances of doctors across the county convicted for overprescribing opioids, none were charged with murder until 2015. In that year, a California doctor was convicted of second-degree murder for the deaths of three of her patients—one from Orange County—for whom she had prescribed opioids and other dangerous drugs, even though as the prosecution successfully established, she knew of the dangers. Despite one of her patients overdosing in her clinic and numerous phone calls from authorities warning her that some of her patients had died with drugs in their system, she continued to dole out dangerous prescriptions. Although she was only charged with the three deaths, there were at least five other patients in her care who died from overdoses. The California doctor was the first in the country to be charged and convicted of murder for the reckless prescription of opioid drugs. The doctor’s sentence: 30 years to life.

In the wake of the not guilty verdict of George Zimmerman, for shooting and killing Travon Martin, a young teenage boy, people are struggling to understand how the jury came to the decision that it did. To understand the jury’s decision, it is important to understand the defense of self-defense, and what constitutes self-defense. Also important to understand is the charge of second-degree murder and what elements must be met to charge and convict someone of this crime.

As we know, in the People vs. Zimmerman case, the District Attorney charged George Zimmerman with second-degree murder. However, the elements to convict someone of this crime were not met. The charge of second-degree murder, typically involves someone killing another person “impulsively and without premeditation”. However, the law defines second-degree murder, and it’s elements as follows:

1. That you committed an act that resulted in the death of another person – In the People v. Zimmerman case, we know this to be true. 

2. That it was committed with malice aforethought – To determine if this element existed, we must first understand what “malice aforethought” means. 
Basically, it means that at the moment the murder occurred, the killer intended to kill the victim, but prior to that moment had no intent to do so.

3. It was without lawful excuse or justification – Is self-defense considered a “lawful excuse” or “justification”? In the eyes of the law, yes.

Self-defense is a legal defense that excuses conduct, which would otherwise be criminal. However, California self-defense laws are very specific and do not apply to all situations. The following are conditions that must be met in order to justify self-defense:

1. A reasonable belief that you are in imminent danger of being killed, seriously injured, or unlawfully touched.

2. A belief that immediate force is necessary to prevent that danger, and
3. That you use no more force than is necessary to defend yourself against that danger.

The true meaning of self-defense isn’t perfectly clear, but when asserted properly becomes a legal defense that can result in immunity against prosecution or acquittal as we saw in the Zimmerman case.

Another documented case where the defense of self-defense was successfully argued is People vs. Deiran Green, in which the defendant was indicted for malice murder, felony murder aggravated assault, and possession of a knife during the commission of a felony after he punctured the femoral nerve of a man with a knife during a physical struggle. Green filed a motion to dismiss the indictment on the grounds that he was immune from prosecution under the self-defense laws.

The Court determined that Green never intended to stab or injure Waldon, the victim; that he had taken the knife with him because he didn’t trust Waldon and further that Green told Waldon he wasn’t going to hurt him, that he just wanted his rent money. The trial court granted Green’s motion finding that Waldon had attacked Green, reasonably putting Green in fear for his life.

The State appealed the trial court’s decision stating that there was no justification for the self-defense defense because the use of force is a necessary prerequisite and that there was no evidence that Green used force against Waldon. However, the appellate court confirmed the trial court’s findings, stating that defendant would have been justified in using deadly force against Waldon to protect himself, although he was not required to do so in order to be immune from prosecution.

The laws regarding murder and the defenses thereto are complicated. Each case has unique circumstances that must be carefully examined to determine exactly what type of charge is appropriate and what type of defense may apply.

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A young 24-year-old man was recently arrested for the murder of his girlfriend. The Laguna Hills resident is being accused of stabbing his girlfriend to death. According to authorities, he was taken into custody in Arizona and is now being questioned, pending extradition back to Orange County California. As an experienced criminal defense attorney, practicing law in Orange County for 20 years, my first advise to this young man would be to hire an attorney before talking to anyone. The authorities have a way of both intimidating people into saying things they don’t mean as well as offering a false sense of compassion, in order to elicit a confession.

When someone is being accused of something as serious as murder, especially someone this young with relatively little life experience, the fear and stress is overwhelming and can cause a person to respond in ways they normally would not. People, especially young people, when being questioned by the authorities, want to be believed and if they are not will often change their story or add more or less detail in order to make the questioning stop. Also, being questioned by the authorities for such a serious crime can be so intimidating that the person makes mistakes, and misstates what they mean.

The details of this case are not yet known and exactly what happened is yet to be seen. But, if this young man was in some way involved in this young woman’s death, looking to why this happened and under what circumstances is crucial to his defense. When the crime of murder is committed involving people, who know each other, often there is escalating emotional circumstances that end tragically.

In order to be convicted of murder, the following elements must be met:

1. That you committed an act that resulted in the death of another person;
2. That it was committed with malice aforethought; and
3. It was without lawful excuse or justification.

There are different degrees of murder but California law defines murder as: “The unlawful killing of a human being or fetus with malice aforethought.” Let’s take a look at some of the more common charges of murder:

1. First Degree Murder – In order to be convicted of first degree murder, the prosecution must prove that: a) you committed the murder; b) the murder was committed in a way that was willful, deliberate and premeditated; or c) the murder was committed by way of the “felony-murder rule”.

2. Second Degree Murder – Like first-degree murder, it had to have been willful but not deliberate and premeditated.

3. Manslaughter, Voluntary vs. Involuntary – Involuntary manslaughter involves an unintentional death. An unlawful killing that takes place during the commission of an unlawful act or, during the commission of a lawful act which involves high risk of death or great bodily injury, that it committed without due caution. Voluntary manslaughter applies to killings that are committed during a sudden quarrel or in the heat of passion.

These are just a few examples of the different degrees of murder. If convicted, the sentence will depend upon what he pleads to or what charge he is ultimately convicted of. The following are some examples of the sentence, if convicted, this young man may be facing:

1. A conviction of first-degree murder carries a potential sentence of 25 years to life;
2. A conviction of second degree murder carries a potential sentence of 15 years to life; and
3. Manslaughter: A conviction of voluntary manslaughter is three, six or eleven years in state prison. A conviction of involuntary manslaughter is: formal probation and up to 1 year in county jail or two, three or four years in state prison.

As you can see, the difference of being convicted of murder vs. any of the other possibilities is quite significant. For this reason, hiring an experienced criminal defense attorney is the most important thing a person can do when facing the charge of murder.

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California defines murder as “the unlawful killing of a human being or a fetus with malice aforethought.” As straightforward as that sounds, there are many degrees to the charge of murder. The circumstances of how the person was killed or how they died, will affect how the District Attorney will file the charges and will also help to determine the defense your criminal defense attorney will use. As an experienced Orange County Criminal Defense Attorney, my priority is always to protect the rights of my client, which, often times are violated during the initial investigation and subsequent arrest. I look closely at police conduct both prior to and after the arrest. It is also extremely important to interview any witnesses that the police agency has interviewed because police reports often leave out important information that witnesses may have provided and, whether intentional or not, the investigating officers have omitted from his or her report.

If it is determined that the evidence is overwhelmingly in favor of the prosecution, then the circumstances surrounding the death becomes the focal point. For example, was it an accident; was it during a heated argument; was it self-defense. There are many more defenses that an experienced murder defense attorney should explore. Let’s take for example a situation where two people who know each other begin to argue and the argument escalates until one of them looses control and ends up killing the other. It was not the intent of the person to kill the other but nonetheless, they now face murder charges. In this situation, a good criminal defense attorney should proceed to build his case with a view toward having the charges reduced to voluntary manslaughter. For purposes of this writing, I will discuss voluntary manslaughter and the possible sentences.

Voluntary manslaughter applies to killings that are committed during a sudden argument or in the heat of passion. The difference between murder and voluntary manslaughter is whether you acted with “malice aforethought. Malice aforethought exists when you act with (1) an intent to kill or (2) a wanton disregard for human life.

What constitutes “sudden argument” or “heat of passion”. What this means is you were provoked, and as a result of being provoked, you acted rashly and under the influence of intense emotion that obscured your reasoning or judgment, and the provocation would have caused an average person to act rashly and without due deliberation…that is, from passion rather than from judgment. Penal Code 192(a) defines heat of passion as: any violent or intense emotion that causes a person to act impulsively.

The penalties, punishment and sentencing vary depending upon the circumstances and the plea agreement reached. If convicted of voluntary manslaughter, you face three, six, or eleven years in prison. However, if convicted of murder, the exposure of time is 15 years to life in prison and the possibility of a death sentence. Other penalties might include: 1) a strike on your record which could increase your penalties if you have any prior felonies or if you are convicted of any future felonies; 2) a maximum $10,000.00 fine; 3) the loss of the right to own a firearm; 4) community service such as Cal Trans; 5) counseling services; and 6) any other conditions that the court deems appropriate.

Hiring the right criminal defense attorney in Orange County, California, can be the most important decision a person makes when being accused and/or charged with a criminal matter.

Anyone being accused of a crime in Orange County, California, should seek the advise of an attorney who is familiar with all the Courts in Orange County. An attorney who has a good working relationship with the individual Judges, District Attorneys, Court Clerks and Probation Department, as well as the Court staff, will be better able to get your charges reduced and/or dismissed. An attorney familiar with the Courts in which a case is pending will result in the best possible outcome available.

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What began as a plot to uncover stashes of money ended with the death of a man over nothing: no money at all. Instead, Debbie Perna is rotting in prison on a life term after engineering the gang murder of her brother, David Montemayor, a man brave enough to run away from his captors so they couldn’t take him home and threaten his wife and children.

Perna told the gangsters that if they killed her brother, they’d get paid with cash stuffed in coffee cans. Turns out that was a rumor. No cash. Just orphans and a widow. Murder of a sibling dates back to the old testament. It’s either jealousy, greed or a combination of both. In either event, the person charged with arranging the murder has a right to due process, no matter what the freaks and weirdos who post their comments say about it. Perna could have, theoretically, had mental problems that affected her judgment. A good lawyer would explore mental defenses, particularly in a capital murder case.

To qualify for the death penalty instead of just life in prison without the possibility of parole, special circumstances need to be present. Some special circumstances include felony murder, murdering a peace officer, prosecutor or judge or multiple murders, among others. If you are convicted of murder with special circumstances, you will be on Death Row for years before being executed. If you are sentenced to murder without special circumstances, you will have to spend your life in prison. Whether you live in Santa Ana, Irvine or Anaheim, if you are charged with murder, call an experienced criminal defense attorney right away to assist you.

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